Glenford recently wrote on foodborne illnesses in institutional kitchens for the Canadian Society of Nutrition Management magazine Food Service & Nutrition. The magazine assists professionals in institutional kitchens and food service develop nutrition best practices for prisons, schools, cafeterias, hospitals, long term care facilities, and other large-scale food service establishments.
You can read the Food Service & Nutrition magazine article here, or in full-text below:
Keeping the Kitchen Clean: Avoiding Foodborne Illness Catastrophes
For the past century, institutions considered their foodborne illness prevention obligations as being met once they made it through a quick visit from the local public health inspector, whose job was to ensure that a kitchen hit a formulaic set of standards. From there, that kitchen had done its job – it had a stamp of approval and was serving safe food.
But Canada doesn’t have to dig deep into its collective memory to recall its worst modern food safety crisis: the Maple Leaf listeriosis crisis in 2008 in which twenty-two people died as a result of eating cold cuts. Fewer Canadians typically remember the $27 million class-action settlement that was awarded to those harmed by contaminated products during the crisis. From the Maple Leaf crisis came the Weatherhill Report, an independent investigation into food safety in Canada, followed by a sea-change of legislative and regulatory reforms to protect the health and safety of Canadians.
The outcomes of such a crisis have been an increase in civil lawsuits, regulatory action, and media coverage relating to food safety. These actions present an increased requirement for institutions to understand and assess their internal risk, develop protocol, and implement training and technology to ensure that kitchens are meeting their duty of care under multiple legal and regulatory frameworks. Thinking critically and accountably about each party’s rights and obligations when providing for the nutritional needs of diners can be the difference between keeping your organization focused on fulfilling its mandate and having to respond to the courts, federal and provincial regulatory investigators, the media, the public, and the people you serve.
Consider the flow of liabilities from a foodborne illness: civil actions relating to foodborne illness typically arise from either the tort of negligence or a breach of contractual duties. For torts, a plaintiff’s claim of negligence must be followed by proving that a food service agent owed a duty of care to the plaintiff, then breached whatever standard of care the plaintiff was owed, followed by a demonstration of the plaintiff’s damages and an establishment of the causal relationship between the damages and the negligent act. Lawyers call this the Anns-Cooper test, and all of this is done on a balance of probabilities to determine liability. Historically, in the food context, meeting the Anns-Cooper test has been tough to do and, frankly, not overly worthwhile for aggrieved: short of an immediate allergic reaction or mass outbreak, it has been difficult to pinpoint the causation of illness. Furthermore, when calculating damages, Canada’s healthcare and employment laws mean that plaintiffs aren’t generally out of pocket for doctors and missed work in the same way as their American counterparts.
The increased prevalence of food allergies has changed this causation problem with plaintiffs experiencing immediate and severe reactions. A 2011 case in Saskatchewan, Martin v. Interbrooks Ltd., awarded $25,000 and legal costs to Mr. Martin, who had a severe allergic reaction after being served a triggering piece of cheesecake that he was assured by his server did not contain nuts. It’s well established law that a food service establishment owes a duty of care to its customers and in this instance the server failed to meet her standard of care, which was likely going into the kitchen to read the ingredients, or by asking a manager or head cook (which she failed to do). Martin’s damages stemmed from an immediate anaphylactic reaction resulting in near-death and the restaurant’s role in causing the damages is plain on the facts of the case. Since this landmark case in food safety negligence, negligence claims against food service establishments have risen, often settling before trial but not without damages and costs.
When a food service establishment serves any food item, it’s critical to remember that it is entering into an oral contract with that person. In law, any contract typically comes with a mix of implied and express warranties. An implied warranty would be that the food is fit to eat and not spoiled; and an express warranty would be a representation from a server that your cheesecake doesn’t have nuts in it. At contract, an establishment can be sued for breach of contract and negligent misrepresentation, a tort stemming from the existence of the contract.
So, what does this mean for a kitchen? Well, simple errors can result in lawsuits, for one: raw or undercooked food, foreign objects and allergens can all result in some nasty consequences. Is it fair? Of course not: kitchens can be exposed to the will of a sick employee, a lapse in judgment, or a sanitizer not working correctly. But fair or not, the liability is created. Lawyers first think of court awards for damages and costs but, more often than not, it isn’t the civil lawsuit that causes problems: it’s often the news headlines and regulatory responses that accompany an ambulance ride to the hospital that pose the most significant threat to an establishment.
Public goodwill is increasingly fickle in the face of food safety: ask anyone what they think about Chipotle and you’ll conjure images of a food safety nightmare. The company’s 2015 salmonella, E. coli, and norovirus outbreaks have resulted in a three-year PR battle that the company appears to be losing. Once your reputation is tarnished in the public mind, it’s hard to return to form. The same is true for hospitals, long term care facilities, meal halls, and prisons: the public will go to remarkable steps to avoid perceived risks relating to food.
Once the public is concerned, Canada’s reactionary regulatory bodies will spring into action, often from a blend of different agencies: the Canadian Food Inspection Agency and provincial and municipal public health teams have a wide range of powers to enforce compliance where food safety practices have been ignored. A business can be shut down, operations can be suspended or placed on probation, directors can be fined, and people can be criminally charged for their actions.
Food service establishments are now recognizing these increased risks and finding ways to improve risk management by building it into their institutional culture: medical inventory apps are being marketed to food service to ensure proper food storage techniques; staff are being trained on what allergic reactions look like, with one staff member being trained to be the floor expert on food allergies and ingredients; sick day policies are being written with an assumption that norovirus is the norm, not the exception; and kitchens are playing with products like Glo Germ to understand cross-contamination. There are lots of opportunities to manage liabilities inherent in food service.
The legal liabilities relating to food safety can be scary. Food can kill if improperly handled and served: a harsh legal and regulatory regime are in the public interest. Thus, it’s your interest to think critically about the risks faced by your institution and to find ways to create a culture built around food safety and best practices. If someone falls ill at the hands of your kitchen, won’t you want to be able to demonstrate to the courts, regulators, and public that best-in-class standards of food safety were in place?